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Price v. Malas Enterprises 2

August 1, 2008

LARRY PRICE, PLAINTIFF-APPELLANT,
v.
MALAS ENTERPRISES 2, LLC, AND UNION CITY ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5395-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 24, 2008

Before Judges Cuff and Fuentes.

Plaintiff Larry Price appeals from the order of the Law Division upholding the decision of defendant Union City Zoning Board of Adjustment to grant defendant Malas Enterprises 2, L.L.C.'s ("Malas") application for a use variance and related bulk variances to construct a residential building. Plaintiff argues that the court erred because the Board's actions were not supported by the evidence presented, and that the applicant failed to establish special reasons for the relief requested.

We agree with plaintiff's argument and reverse.

Malas owns property located at 138-144 36th Street, Union City, New Jersey; the site is currently vacant. Malas proposed to construct on this site a multifamily apartment building consisting of five residential floors, totaling thirty-five units, situated over three levels of above-ground parking. The property is located in an "R Zone," which permits principal residential uses of "one, two, and four family dwellings" and row houses for one family use. Conditional residential uses for this zone are "public housing developments for senior citizens" and "limited multi-family developments."

Union City's zoning ordinance does not define "limited multi-family developments." The ordinance does provide, however, that:

Note 21. Limited multi-family developments shall be permitted subject to site plan approval by the planning board and provided that:

(1) A sufficient land aggregate can be assembled to provide a site of at least 10,000 square feet.

(2) Such multi-family development would be compatible with the neighborhood in which it is contemplated, to be determined during the planning board's review for site plan approval.

(3) The requirements for garden apartment developments, as contained in Note 12, shall be met by the applicant.

[(Emphasis added).]

"Garden apartment developments" are one of only two types of apartment house envisioned by the ...


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